Finally, it has arrived, Judge Brooke Wells' Order on SCO's Motion Re Discovery. It's annoying because she enables more delay, but other than that it is a pretty normal discovery order. SCO doesn't get access to CMVC, they do get more code and they get not all programmers' notes but some. She postpones any decision on production of documents from top managment. Keep in mind, she isn't the trier of fact. That is Judge Kimball. She is the Magistrate, so it's not her job to decide who is right or wrong. Her job is simply to make sure everybody's cards are on the table.

Judges don't get in trouble for ordering more discovery. That's why in hot disputes, they usually do order more discovery. And so IBM will have to go to the expense and take the time to sort through everything and comply. They can go back and explain why they can't do X or Y and ask her to revise her Order, and they could appeal, but why bother? I'm not saying they won't do either, because part of her order is a bit hard to comply with. By what measure, for example, do you decide which of 7,200 individuals are the 3,000 who contributed the most to AIX? That is what IBM will have to figure out. Wells calls that a representative sample, but it's actually almost half, so we must have had different math teachers.

The worst, in my opinion, is that now the schedule for this farce to go to trial, if it ever does, is going to have to be redone. So more delay.

And if you look at page 12 of the order, you will see that Judge Wells doesn't understand the tech arguments, which doesn't ultimately matter, because she isn't the fact-finder here, but it leads to orders like this:

"Finally, the court wishes to note the importance of the code to both parties. SCO has much to gain by showing that any so called homegrown code allegedly within the purview of the contract ended up in Linux. In equal respect, IBM's case will be strengthened tenfold if IBM can show that notwithstanding possible contract protections, homegrown code provided no basis for the code that IBM eventually contributed to Linux. . . . The production of the code, per se, or the evidence it leads to will not only assist the trier of fact but will help both parties adequately prepare their cases. This dual importance is another element which contributes to the court's decision requiring IBM to produce additional source code."

This is the flaw in her thinking, because that isn't at all the case IBM is seeking to argue. Clearly, she doesn't know enough yet about the code to understand why SCO's argument is silly, and so we will all have to suffer through more delays. Well, sadly we can't all be geeks.

It makes me remember that old Jewish joke that I think I first read in Sigmund Freud's "Wit and Its Relation to the Unconscious," that when you're in love, the whole world is Jewish. It's a joke that stemmed from persecution and pogroms, and that is what makes it funny. Well, today is a day when I wish the whole legal world were geeks.

I guess the delay will mean David Boies will get to start to pay out of his own pocket shortly. But from IBM's standpoint, while this is annoying, it doesn't ultimately mean a thing. In the end it will be clear to the court who is who and what is what. Discovery is what it is, and one thing Wells writes is true: by showing all the code and letting SCO look at it all from now to doomsday, if they never find any code that shouldn't have been donated to Linux, which is exactly what has happened so far, we get the matter settled once and for all. So let them look.

The takeaway to me is on page 10, where Wells writes that she is ordering more code so SCO will be blocked from any further arguments about it:

By requiring this, the court seeks to circumvent future complaints by SCO alleging that IBM failed to provide all CMVC and RCS information.

Dream on. Wells' difficulty is that, as she says, she is crediting good faith to both sides. She would like IBM and SCO to both behave with more "candid cooperation". Right.

I've only just had time to skim the Order quickly, but if I had to sum it up in one sentence, it would be: In discovery, the squeaky wheel gets the grease, or as one reader put it, the squeaky weasel.

Both sides are to submit privilege logs and any objections to the opposing parties' privilege logs within 30 days from the entry of this order. Following briefing, the court will hold a hearing on issues involved in SCO's motion, including the Rule 30(b)(6) depositions. IBM is to produce programmer notes, design documents, white papers, comments and notes made by those who did changes to AIX and Sequent, names and contact information, and what changes they made for 3,000 individuals, a "representative sample", of those "who made the most contributions and changes to the development of AIX and Dynix." Then IBM is to file an affidavit explaining how they picked the 3,000. "Once again," Judge Wells writes, "the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information."

I gather we are not the only ones up to here with SCO's endless motions.

The discovery is to be turned over no later than March 18. I don't think we'll see anything from IBM, therefore, much before that date. SCO and IBM are to confer and come up with a new scheduling order by March 25.

Here is the order as text, with thanks to Thomas Frayne for the transcript.

*******************************

IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH

See Motion, docket no. 190; Minute entry, docket no. 327. At the
hearing, and in an order filed by the court the following day,
the court ordered both parties to prepare and exchange privilege
logs within 30 days. See Order, docket no. 328. The court also
ordered International Business Machines Corp. (IBM) to provide
affidavits from the Board of Directors regarding production of
all non-privileged documents pertaining to IBM's Linux strategy.
SCO's Renewed Motion to Compel was taken under advisement.

Now before the court is SCO's Renewed Motion to Compel. See
Docket no. 190. The court has carefully considered the memoranda
and other materials submitted by the parties. Additionally, the
court has reviewed relevant case law. Now being fully advised,
the court renders the following Order.

SCO's Renewed Motion to Compel

As a preliminary matter, the court considers IBM's argument
that SCO failed to confer with IBM before filing its motion.
Local rule 37-1 requires attorneys to confer and try to resolve
discovery disputes before seeking the intervention of the court.
See DUCivR 37-1(a); see also Fed. R. Civ. P. 37(a)(2)(A)
(requiring certification that the "movant has in good faith

2

conferred or attempted to confer with the party not making the
disclosure in an effort to secure the disclosure without court
action"). Failure to properly confer with another party can be a
basis for denying a motion to compel. See Haselhorst v. Wal-Mart
Stores Inc., 163 F.R.D. 10, 11 (D. Kan. 1995} (denying motion to
compel because of plaintiff's counsel's failure to make a
"reasonable effort" to meet and confer before filing motion).

IBM argues that "SCO's motion should therefore be denied
for" failing to adequately confer before filing its motion.
IBM's Mem. in Opp. p. 5. SCO counters, arguing that there is no
merit to this claim because the items requested in this motion
have previously been requested and are "basic discovery
obligations." SCO's Rep. in Supp. p. 17.

Given the background of the dispute between SCO and IBM,
previous discovery requests by SCO and court involvement, the
court finds there was no need for SCO to confer with IBM prior to
filing their Renewed Motion to Compel. Unfortunately, the court
seriously doubts that a meet and confer over the present motion
would have resulted in anything more than anemic advancement
toward resolving the dispute.

Basic Discovery Principles

Rule 26(b)(1) of the Federal Rules of Civil Procedure states
in relevant part: "Parties may obtain discovery regarding any

3

matter, not privileged, which is relevant to the subject matter
involved in the pending action .... The information sought
need not be admissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of
admissible evidence." Fed. R. Civ. p. 26(b)(l). This rule has
been interpreted broadly by the United States Supreme Court. See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct.
2380 (1978). "[A]t the discovery stage, the concept of relevance
should be construed very broadly." Gohler, IRA, et al. v. Wood
et al., 162 F.R.D. 691, 695 (D. Utah 1995). However, a court may
limit discovery where "the discovery sought is ... obtainable
from some other source that is more convenient, less burdensome,
or less expensive." Fed. R. Civ. P. 26(b)(2)(i). A court may
also limit discovery if "the burden or expense of the proposed
discovery outweighs its likely benefit." Fed. R. Civ. P.
26(b) (2) (iii).

SCO's renewed motion requests the following:

1. All versions of AIX and Dynix/ptx, including the names
of individuals who contributed to AIX and Dynix. According to
IBM, this additional source code is "roughly two billion lines of
code." IBM's Mem. in Opp. p. 7, docket no. 217.

2. Access to revision information including access to IBM's
storage systems known as Configuration Management Version Control
(CMVC) and Revision Controls System (RCS). See SCO's Renewed

4

Mtn. p. 3, docket no 190; Mem. in Supp. p. 5, docket no. 193.
These systems allegedly contain information regarding what
changes were made to AIX and Dynix and by whom such changes were
made. See id. SCO argues such information is responsive to its
discovery requests, is necessary to prosecute its case and to
defend against IBM's counterclaims. See id.

3. Documents from top level management relating to inter
alia, IBM's use and strategy behind Linux. See SCO's Mem. in
Supp. p. 2.

4. Further supplementation to Interrogatory Number 5, which
seeks the identity of "IBM or Sequent personnel that work or
worked on developing source code, derivative works, modifications
or methods for AIX, Dynix and Linux, specifying for each person
their precise contributions to each." Id. p. 4 (emphasis in
original).

5. Witness contact information that is to include a 1000 of
the most important prospective trial witnesses as agreed upon by
SCO and IBM." Order dated March 3, 2004, p. 5, docket no. 109.

A. Source Code

Previously, this court ordered IBM to "provide the releases
of AIX and Dynix consisting of 'about 232 products.'" Order

5

dated March 3, 2004, p. 4, docket no. 109. Based on the
representations before the court it appears that IBM provided
these products.

In this same order, the court also provided a means whereby
it would "consider ordering IBM to produce more code from AIX and
Dynix." Id., see also American Medical systems. Inc. v. National
Union Fire Ins. Co. 1999 WL 562738 * 2-3 (E.D. La. 1999) (denying
a discovery request as over broad, but not ruling out the
possibility of allowing the discovery after a party first
"procure[d] relevant documents").

In its second amended complaint SCO alleges that IBM
breached the Software Agreement. See SCO's Second Amended
Complaint p. 32. Specifically, SCO alleges that IBM received
Section 2.01 of the agreement which states:

[a] personal, nontransferable and nonexclusive right to
use in the United States each Software Product
identified in the one or more Supplements hereto,
solely for Licensee's own internal business purposes
and solely on or in conjunction with Designated CPU's
for such Software Product. Such right to use includes
the right to modify such Software Product and to
prepare derivative works based on such Software
product, provided the resulting materials are treated
hereunder as part of the original Software Product.

System V source code, derivative works, documentation related
thereto and methods based thereon) for external purposes that are
different from, and broader than, IBM"s own internal business
purposes." Id. p. 33 {emphasis in original). SCO further
alleges that IBM breached other sections of the Software
Agreement, the Sublicensing Agreement and other contractual
agreements (Sequent License Agreements). See id. p. 33-65; SCO's
Second Amended Complaint Cause of Action 1-4.

In contrast to SCO's arguments, IBM has filed for partial
summary judgment on SCO's breach of contract claims. See IBM's
Mtn. for Partial Summ. Judgment, docket no 225. In short, IBM
cites two primary reasons as a basis for granting summary
judgment. First, "the AT&T agreements upon which SCO's claims
are based do not preclude IBM from using and disclosing source
code that is written by IBM and does not include UNIX System V
code [i.e. homegrown code]." Id. p. 3. Second, "even if the
AT&T agreements could be read to preclude the disclosure of
homegrown code, any breach based upon such a reading has been
waived by Novell, Inc." Id. IBM's Partial Motion for Summary
Judgment on SCO's breach of contract claims is to be heard by
Judge Kimball.

From the foregoing, it is clear that the contracts and their
interpretations are central to the disputes in this case. In
fact, the contract claims may have a more important role in the

7

outcome of this case than the copyright claims. Other courts
have determined that "contractual alternatives to copyright may
give an owner of computer software more protection than copyright
would." Dispatch Automation. Inc. v. Richards, 280 F.3d 1116,
1120 (7th Cir. 2002). The majority of courts have adopted this
principle. See, e.g., Bowers v. Baystate Technologies, Inc., 320
F.3d 1317, 1327-28 (Fed. Cir. 2003) (upholding a jury verdict of
breach of contract where the contract prohibited "all reverse
engineering" of the software, a protection that was "more
extensive than copyright protection, which prohibits only certain
copying"), ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th
Cir. 1995) ("A copyright is a right against the world. Contracts,
by contrast, generally affect only their parties; strangers may
do as they please, so contracts do not create 'exclusive
rights.'"); National Car Rental System. Inc. v. Computer
Associates Intern., Inc., 991 F.2d 426, 433 (8th Cir. 1993)
(concluding that "[a]bsent the parties' agreement" the use
restriction on the processing of data for third parties would
cease to exist because it was not found within the purview of
copyright law); Acorn Structures, Inc. v. Swantz et al., 846 F.2d
923, 925-26 {4th Cir. 1988) (concluding copyright law did not
preempt breach of contract claim concerning the ideas underlying
the agreement). Accordingly, code belonging to SCO that might
otherwise have lacked protection under copyright law may fall

8

within the confines of the contract and be protected.

In opposition, IBM argues that "the vast majority of these
source code files are wholly irrelevant to this case (under any
theory) because they were not contributed to Linux." IBM's Opp.
Mem. p. 9. While the court agrees with IBM that this case
concerns code that may have been improperly contributed to Linux,
the court disagrees with IBM's narrow interpretation of relevant
code. Under a plausible reading of the contract, it is possible
that protections and prohibitions exist for code contributed by
IBM to Linux. This code that eventually ended up in Linux may
not look similar to the code initially provided to IBM under the
contract, but if it was based on modifications, elements or
derivations that are protected under the contract then it is
clearly relevant. In contrast to IBM's argument this protection
may even extend to "homegrown" code depending on the
interpretation of the contract.

Based upon the possibility of increased protection under the
contract and the general principle that "at the discovery stage,
the concept of relevance should be construed very broadly," see
Gohler, 162 F.R.D. at 695, the court finds that the burden of
producing the code SCO seeks is outweighed by the relevancy of
such code in the instant dispute.

Accordingly, the court HEREBY ORDERS IBM to provide in a
readily accessible format all versions and changes to AIX and

9

Dynix.

In essence, the court is ordering production of the
information contained within the CMVC and RCS systems without
granting SCO complete access at this time. These systems
allegedly contain source code that is outside the scope of the
present litigation. Such code is used by IBM during their normal
course of business and would not be relevant to the present
dispute. Therefore, due to IBM's business interests the court
DENIES SCO's request for complete access to the systems at this
time. However, if IBM fails to provide ALL AIX and Dynix
information, the court will order IBM to allow SCO unfettered
access to the CMVC and RCS systems. This production is also to
include the approximately "two billion lines of code" as
represented by IBM in addition to any other code that is found in
the CMVC and RCS systems relating to AIX and Dynix. IBM's Mem.
in Opp. p. 7.

IBM is also hereby further ORDERED to file an affidavit
specifying the efforts it took to deliver the code from the CMVC
and RCS systems. Included in this affidavit should be an
attestation to the percentage of AIX and Dynix information found
and provided from the CMVC and RCS systems. By requiring this,
the court seeks to circumvent future complaints by SCO alleging
that IBM failed to provide all CMVC and RCS information.

The good faith efforts of both parties will be necessary in

10

facilitating the production of such a large amount of source
code. The foundation of our legal system depends in part upon
the cooperation of adversaries who are required by the civil
rules to provide information essential in "secur[ing] the just,
speedy, and inexpensive determination of every action." Fed. R.
Civ. P. 1. Unfortunately though, this standard is often
abandoned perhaps in part due to the aggressive adversarial
nature of litigation and the large amounts of money involved.
Although counsel are expected to protect their client's interests
and guard against excessive burdens, such efforts should be
tempered with candid cooperation between adversaries. In an
ideal world, cooperation would lead to a streamlined discovery
process whereby the fact finder could quickly resolve the
ultimate issues found in disputes. Such a situation promotes
efficient disposition of litigation, which is generally a good
thing. Doubtless as the parties are well aware, all cases do not
exist in the ideal world. However, this does not excuse counsel
from striving to meet this standard.

There have been abundant accusations of stonewalling in this
case by both parties. While the court assumes the good faith of
all litigants before it, the court, nevertheless, urges both
sides to renew their efforts in cooperating with each other.
Ultimately, it will be up to the fact finder to resolve the
disputes in this case. However, it is important that the

11

adversarial process, as contentious as it may be, not prevent the
fact finder from having the right information to resolve the
issues in this case.

Finally, the court wishes to note the importance of the code
to both parties. SCO has much to gain by showing that any so
called homegrown code allegedly within the purview of the
contract ended up in Linux. In equal respect, IBM's case will be
strengthened tenfold if IBM can show that notwithstanding
possible contract protections, homegrown code provided no basis
for the code that IBM eventually contributed to Linux. Both
sides in this dispute are on the offensive and defensive much
like the versatile two-way players from football's storied past.
2
The production of the code, per se, or the evidence it leads to
will not only assist the trier of fact but will help both parties
adequately prepare their cases. This dual importance is another
element which contributes to the court's decision requiring IBM
to produce additional source code.

12

B. Documents From Top Level Management

At a hearing held on October 19, 2004, the court ordered
both parties to prepare and exchange privilege logs. See Docket
no. 327; Order dated October 20, 2004. Additionally, IBM was
specifically ordered to "provide affidavits from the Board of
Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding
production of all non-privileged documents pertaining to IBM's
Linux strategy." Id. p. 1.

Judge Kimball granted a stipulated extension to IBM allowing
them to file their opposition on February 4, 2005. SCO will
likely file a reply if they so choose shortly thereafter.

Accordingly, the court finds it necessary to postpone a
decision regarding the production of documents from top level
management. However, the court HEREBY ORDERS both parties to
submit privilege logs and any objections to the opposing parties'
privilege logs to the court. These are to be provided to the
court within 30 days from the entry of this order. Following

13

briefing, the court will hold a hearing regarding the issues involved in SCO's motion including those concerning the Rule 30(b)(6) depositions.

C. Answers To Interrogatories

SCO requests further answers to Interrogatory 5. See SCO's
Mem. in Reply p. 6. Interrogatory 5 seeks "the identities of
'IBM or Sequent personnel that work or worked on developing
source code, derivative works, modifications or methods for AIX,
Dynix and Linux, specifying for each person their precise
contributions to each.'" Id. p. 7 (emphasis in original).

In support of its request, SCO points to the importance of
possible admissions concerning the contracts. SCO argues that
this information is relevant to determinations of

-- admissions concerning the meaning of, and
limitations imposed by, the license agreements;
-- admissions regarding IBM's liability for breaching
those contracts; and
-- admissions that the development of AIX and Dynix/ptx
depended on UNIX System V.

SCO's Rep. Mem. p. 10.

IBM states that "there is no precise way to determine what
code of the more than 7,200 individuals identified in response to

In direct contrast to IBM's argument is a sworn declaration
from an individual familiar with CMVC. Allegedly CMVC is a
series of databases that contains within itinter alia, a
tracking system that traces all changes to source code, who made
those changes, the dates on which they were made, comments
related to the changes and other information concerning the
specific files of code.

After consideration of the parties' arguments, the court
finds that some supplementation to Interrogatory 5 will likely
occur from the court's ordering of IBM to produce additional
source code. However, the court finds that it is not only the
changes to the code that are relevant but also the names and
information concerning those individuals who made the changes.
This information is relevant in part because some of these
individuals may have information concerning IBM's treatment of
the contracts. Such witness testimony would assist the trier of
fact in interpreting the contract.

Accordingly, IBM is hereby ORDERED to provide programmer's
notes, design documents, white papers, the comments and notes
made by those who did the changes, the names and contact
information of individuals who made changes and what changes they

15

specifically made. Once again, in weighing the burden imposed on
IBM with the relevancy of evidence that is not obtainable from
other sources, the court finds it appropriate to order the
production of this information.

However, IBM is not ordered to provide this information for
all 7,200 individuals. See IBM's Opp. Mem. p. 9, fn. 10.
Instead, consistent with the court's prior decision concerning
witness contact information IBM is to provide a representative
sample. Accordingly, IBM is HEREBY ORDERED to provide the above
required information for the 3000 individuals who made the most
contributions and changes to the development of AIX and Dynix.
This limitation does not absolve IBM from the court's requirement
to provide all changes to AIX and Dynix. In the court's
estimation, it should be easier to show changes to source code
than provide the information concerning who made every change to
that code. A representative sample of 3000 should provide SCO
with enough information to proceed with its case without placing
an undue burden oi IBM. Especially, in light of the fact that
these 3000 are to be the individuals who contributed the most to
the development of AIX and Dynix.

To the extent possible the parties are to agree upon the
3000 designated individuals. However, based on the record before
the court it appears that IBM has better access to information
regarding who made the most changes or significant contributions

16

to AIX and Dynix. Therefore, IBM is to file an affidavit
detailing the process by which the 3000 were chosen. Once again
by requiring this, the court seeks to circumvent the rote
objection by SCO alleging that they did not get enough
information.

D. Witness Contact Information

Previously, this court ordered "IBM to properly identify a
representative sample of the potential witnesses that is to
include a 1000 of the most important prospective trial witnesses
as agreed upon by SCO and IBM." Court's order March 3, 2004 p.
5-6. IBM has provided the information and therefore, this "moots
the need[] for further unnecessary litigation . . . over this
issue." SCO's Rep. Mem. p. 17.

CONCLUSION

Based on the foregoing, SCO's renewed motion to compel is
granted in part and denied in part. The discovery ordered by the
court is to be provided no later than March 18, 2005.

The court's decision to grant SCO's motion in part
necessitates some modification to the scheduling order.
Accordingly, the court hereby STRIKES the current amended
scheduling order including the fact discovery deadline of

17

February 11, 2005. The court ORDERS both SCO and IBM to meet and
confer regarding a new schedule and to submit a proposed amended
scheduling order to the court by March 25, 2005.

DATED this 18th day of January, 2005.

BY THE COURT:

___[signature]____

BROOKE C. WELLS

United States Magistrate Judge

18

1 Initially, SCO's Renewed Motion to Compel was scheduled
for oral argument on September 14, 2004. However, prior to the
hearing, SCO filed an ex parte motion for leave to file a
supplemental memoranda regarding discovery. See Docket no. 245.
On September 3, 2004, the court granted SCO's ex parte motion for
leave to file a supplemental memoranda regarding discovery. See
Docket no. 270. IBM then filed a motion to continue the hearing
in order to respond to SCO's supplemental memorandum. Based on
the filing of SCO's supplemental memoranda the court struck the
first hearing date and allowed both parties time to adequately
respond to the issues contained therein. See Order, docket no.
284.

2 Although some modern players are considered "two-way"
players, few can match the legendary ironmen from football's past
who often played on both offense and defense the entire game.
Hall of Famer Mel Hein is the perfect example. This New York
Giants' star was one of the most durable players in NFL history.
He played 15 seasons going for 60 minutes a game without nearly
any rest. Amazingly, he called for a timeout just once in his
career. The timeout was used to repair his broken nose. See
Biography of Mel Hein, Pro Football Hall of Fame, available at
http://www.profootballhof.com/hof/member.jsp?player_id=92.

United States District Court

for the

District of Utah

January 19, 2005

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed
by the clerk to the following: